With little fanfare, the Fraud Section of the Department of Justice’s Criminal Division last week published a list of sample topics and questions, entitled the “Evaluation of Corporate Compliance Programs.”
Those already well-versed in compliance programs won’t find anything earthshattering within the document. Many of the topics already appear in various documents, including the U.S. Attorneys’ Manual; the U.S. Sentencing Guidelines; corporate resolution agreements; the FCPA Resource Guide; the Good Practice Guidance on Internal Controls, Ethics, and Compliance adopted by the Organization for Economic Co-operation and Development (OECD); and in the Anti-Corruption Ethics and Compliance Handbook for Business, published by OECD, United Nations Office on Drugs and Crime, and the World Bank.
“We recognize that each company's risk profile and solutions to reduce its risks warrant particularized evaluation,” the Fraud Section stated. “Accordingly, we make an individualized determination in each case.”
That said, ethics and compliance officers will still find the document useful as it provides a more explicit and transparent explanation as to what common questions the Fraud Section said it “may ask in making an individualized determination” in evaluating a corporate compliance program.
Specifically, the document contains the following 11 sections, each accompanied by sample topics and questions:
Analysis and remediation of underlying misconduct;
Senior and middle management;
Autonomy and resources;
Policies and procedures;
Training and communications;
Confidential reporting and investigation;
Incentives and disciplinary measures;
Continuous improvement, periodic testing, and review;
Third-party management; and
Mergers and acquisitions.
In any particular case, the Fraud Section noted that the topics and questions set forth in the document “may not all be relevant, and others may be more salient given the particular facts at issue.”